Katzoff's article revolves around a document discovered by Yadin in the Judean desert. This is a contract with a date-picker which I will quote in full:
Year fourteen of Imperator Hadrian Caesar Augustus, (11) in the
consulship of Marcus Flavius Aper and Quintus Fabius Catullinus,three days before the Ides of September, according to the numbering of the new province of Arabia year twenty-five, (12) on the twenty-fourth of Gorpiaios, (13) in Maoza in the district of Zoora,Simon son of Jesus son of Ananias(? (14)) to Babathas daughter of Simon, both domiciled in Maoza, greeting.I [Simon] acknowledge that I have bought from you [Babatha] the date crop of the orchards of Judah son of Khthousion, your late husband, in Maoza, called Pherora orchard and Nikarkos orchard (15) and the third called Molkhaios's, which properties you distrain, as you say, in lieu of your dowry (16) and debt [owed you]. (17) For the aforesaid year I will pay to you for the said orchards forty-two talents (18) of first and second "splits" (19) and of Syrian (20) and Naaran(?) (21) [dates] two koroi (22) and five sata, (23) weighing them for you in your house by the scales of Maoza and likewise measuring them for you in your house by the measure of Maoza, [all done] through my guarantor and surety Sammouos(? (24)) son of Menahem of the said Maoza. Whatever is over and above in the aforesaid orchards, those dates I will take unto myself in return for my labors and expenses. And if I do not provide you with the aforesaid dates in full at drying time, I will give you for each several talent [of "splits"] two denarii and of Syrian and Naaran(?) one "black." (25) Both upon myself and upon my property or from my guarantor, from whichever the person acting through or for wishes, right of execution shall be valid everywhere, the formal question having in good faith been asked and acknowledged in reply.
(26) [second hand, Aramaic] Shim'on son of Yeshu'a: I have purchased from Babatha (Witnesses:) (one or more names missing) Yeshu'a son of Yeshu'a, witness Yohsef son of
Hananiah, witness [first hand, Greek] Written by Germanos, librarius Yehohanan son of Menahem, witnessOn the back: Shammu'a son of Menahem has written: talents forty and ... k(ors) two se'ahs five.
The one added sentence in P. Yadin 22 is: ... I [Babatha] shall clear the right to the aforesaid orchards foryou [Simon] of every counterclaimant, and if anyone enters a counterclaim against you because of your purchase and I do not firmly validate [it] for you as aforestated, I shall be owing to you in return for your labors and expenses twenty silver denarii, interposing no objection.
The question is:
There is something very odd here. Simon buys the date crop and pays for the dates with those self-same dates! "Who would sell a crop of dates in exchange for dates?" asks Benjamin Isaac. (27) Furthermore, as we read down in the document, Simon says, "Whatever is over and above in the aforesaid orchards, those dates I will take unto myself in return for my labors and expenses." What does Simon mean, we ask, "in return for my labors and expenses"? They are his dates; he just bought them..... (See at length for various difficulties with this document).
Katzoff's suggestion:
He points to the Mishna in Kesubot that says:
(mKet 9.3): [A man died leaving a wife, a creditor and heirs] ... If he left produce detached from the ground, the one who seized first keeps what he seized ... The excess, R. Tarfon says, should be given to the weaker party. R. Akiva says, There is to be no mercy at law.The property is to be given to the heirs, for all the others must take an oath [in order to collect], but the heirs need not take an oath.
Katzoff suggests (based on R' Akiva's alleged connection to Bar Kochba with which Babatha is also associated - see earier post) that Babatha would not be able to collect the dates once they were harvested for her Kesubah, as per R' Akiva. In order to evade this - "She sells the fruit on the tree, (67) for so long as it is attached to the tree rooted in the ground it is considered landed property, (68) and she has the right to sell it."
I think Katzoff misread the source in his footnote 6, this says: (68.) The Talmud Bavli at bKet 51a considers applying to collection for alimentation a rule, "What is ready to be reaped is considered reaped," associated with R. Meir in dispute with others, mShev 6.6 with bShev 43a, but dismisses it in connection with dates. "
This is an incorrect reading, the Talmud actually says:
15 comments:
Here is a fairly simple theory: Simon has entered into an Iska, i.e. a partnership agreement in which he is responsible to produce 42 talents and the rest belongs to him in lieu of his effort. There are 2 flaws with such an agreement:
A. He cannot be held responsible for the 42 talents if they don't grow since he received nothing in return and is an Asmachta. B. If he takes responsibility for 42 talents worth of crop that may constitute a loan as in the case of Iska in Perek 5 in BM. His work on the orchards would be ribis unless he gets in return 42 talents plus compensation. To get around this, simon buys the crop as a dekel lepeiros and is thus responsible to pay for it with 42 talents of actual dates.
I don't understand the issue. Simon does all the work. He pays the owner X amount in dates and keeps the rest. Makes a lot of sense to me. He gets paid for his labor in the excess dates and the owner gets the work done by someone else and ends up with X amount of dates.
Unless I'm missing something this seems like much ado about absolutely nothing.
FP, The problems is that it is set up as a sale instead of as a standard sharecroppers agreement.
as Katzof puts it:
To put the question bluntly, why is a straightforward hiring of a date-picker disguised as a sale of fruit on the tree?
Anonymous, what yo say sounds interestig but I'm not sure if you are answering the question - why does she not simply make up a simple contract of אריסות?
Dear Wolf2191,
Because, as i wrote in a normal Arisus, the aris does not insure for loss or minimum yield such as the 42 talents in this case. How can the Aris take responsibility for for something without getting anything in return? After all, If the orchards yield nothing he gets nothing. This may be an Asmachta.
Additionally, any insurance on the part of an Aris is considered a loan for the purposes of Ribbis, see Sugya of Iska and Sefina in Perek 5 of BM. When an Aris insures he must get a profit margin equal to his insurance plus to get paid for his efforts.
Buying the crop and selling it back would not have to entail kabbalas hefsed and would not be considered a loan or Asmachta.
Very interesting! Have you seen the full article?
Katzoff's idea follows a thought process that is found in the Talmud (there are all sorts of stories of women taking advantage of various loopholes in the Kesubh, etc.). I never heard of your type of "insurance" and don' now if the concept existed but what you say is interesting nontheless.
Thanks for commenting!
dear wolf,
I didn't make up the insurance part. By definition, the widow was being promised (through the gimmick of a sale)a minimum yield of 42 talents. But Kabbalas Hefsed by the managing partner is standard in any Iska see prakim hamekabel and aizehu neshech.
True! But this isn't an Iska. This is a contract to pick dates - what loss is to be expected that mus e insured against - the dates are ripened and ready to be picked. Are we worried about worms or rain or something?
"And if I do not provide you with the aforesaid dates in full at drying time, I will give you for each several talent [of "splits"] two denarii and of Syrian and Naaran(?) one "black."
Is this not kabbalas hefsed\ insurance?
Also, why would simon be paid for defined work an undefined amount if there wasn't also an undefined risk and an incentive involved. Do you know anyone who is compensated this way. There must have been a risk/growth component to the deal.
I didn't see how you know that the dates were already ripe. I assumed it was the yield of the coming year.
Wolf: "To put the question bluntly, why is a straightforward hiring of a date-picker disguised as a sale of fruit on the tree?"
It's not a straightforward hiring of a date-picker. That would involve a set price for his labor. Here it's a variable. With these conditions, why would it be more straightforward to do it another way?
FP, you are thinking of a Poel, we are talking about a standard Arisus (למחצה שליש ורביע) which does not inolve a set price.
Annymous, you are making some excellent points. I will think them over an update the post.
You can call it whatever you want. What I'm saying is it's a reasonable way to structure a business arrangement. Both sides get something out of it. The owner gets a guarenteed return and the labor, the worker gets the excess.
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